Orange County Grand Jury Service

2010/11 Orange County Grand Jury

Introduction

One of the more interesting things I’ve done in a long while was to serve on the 2010/11 Orange County Grand Jury. I was a member of that panel from July 1, 2010 until that wonderful day of our discharge (sometimes referred to as our “parole”) on July 1, 2011. In fact, I somehow got myself elected to the Foreman Pro Tem position, probably because the other jurors did not know at the time I shouldn’t be given any sort of responsible position.

I had an interest in serving on the Grand Jury for a while. On two occasions in my career I had been interviewed by Grand Jurors for topics they were working on. Nothing nefarious I was involved in, they were just looking for background info on certain governmental operations. But the experience left me thinking that could be an intriguing thing to do after retirement.

Before I submitted my application to the court, I looked around on the Internet for more background information on serving on a Grand Jury, and came up a bit short. As a result, I’ve decided to write a little about what it’s like to be a Grand Juror in the hope it might be of help to others considering Grand Jury service. It’s not to scare you away, but you should know what you could be in for.

That said, you’re not going to get any juicy details of the internal happenings. Everything that goes on in a Grand Jury is highly confidential. Grand Jurors are sworn to secrecy about their proceedings for life, which is a big deal. People who work on Top Secret programs have it easier as they are free to discuss them when the programs are declassified. Not so for Grand Jurors. Whatever happens in the Grand Jury chambers stays in the Grand Jury chambers. Even the chambers themselves are without a sign and don’t show up on public floor plans of the courthouse. So I will limit my comments to generalities about what it’s like, the good and the bad points.

A few disclaimers:

These are totally my own opinions and should not be construed as those of anyone else with a reasonable maturity level. And since I’ve said it here, I’m not going to repeat “In my opinion…” endlessly in the text.

What I have to say is specifically about the Grand Jury of the County of Orange in California. Other counties in California might do things a bit differently. Certainly other states will be different, as some states don’t even have Grand Juries.

Any selection processes or procedures I mention were valid during my term. Things could change for other Grand Juries, but they have followed this pattern in the past.

When I speak of the potential negative aspects of serving on a Grand Jury, I’m not saying any of that occurred on ours, as that would be telling. I’m merely offering it as a fair warning to others who might be considering service. It could happen.

Oh yeah, I’m not a lawyer (thankfully) so my description of legal procedures is merely my understanding of them and aren’t any sort of expert opinion. I probably got half of it wrong. The trouble is, I don’t know which half that is.

What the Grand Jury does

Grand Juries in California are panels made up of either 19 or 23 individuals (a few of the larger counties have 23 members, Orange County has 19). Grand Jurors typically serve for a year, from July 1 to July 1, but can be held over longer in extraordinary circumstances. Large counties, like Los Angeles, can have two simultaneous Grand Juries, one that handles criminal indictments and one that does civil matters. However most counties, Orange County included, combine both criminal and civil matters in a single Grand Jury. There have been rare occurrences in the past where Orange County has temporarily seated a second Grand Jury to focus on unusual criminal matters.

The Grand Jury has two primary responsibilities: The bringing of criminal indictments and acting as a watchdog over governmental processes ( The Grand Jury also reviews concerns submitted directly by the public and can make life miserable for dishonest public officials, but that’s a very small component of the workload.) The Grand Jury does not try individuals or pass any sort of sentencing on people, a very common misconception.

The bringing of criminal indictments is perhaps the most important responsibility. In the criminal process, Grand Jury criminal indictments are used in place of a judicial preliminary hearing. As an example, consider someone arrested for the crime of rape. Prior to that person going to trial, a preliminary court hearing must be held to determine if the State has sufficient evidence in hand to even hold a trial. It’s sort of a “trial lite”. If the State can’t show a judge there’s probable cause the defendant committed the crime, the judge can stop the process right there. But note that for a preliminary hearing the level of evidence the State has to show is only “probable cause” and not “beyond a reasonable doubt”.

There are some drawbacks to preliminary hearings. They force the State to tip their hand to the defense as to exactly what their prosecutorial strategy might be in any future trial. Also, in sensitive cases such as sexual crimes, gang crimes or crimes against children, witnesses may have to provide testimony (and be cross examined) in a very public arena. Finally, some defense attorneys can use preliminary hearings to purposely delay the entire process, putting off an actual trial for years.

If the District Attorney wishes to avoid a Preliminary Hearing, he may choose to bring evidence before a Grand Jury and seek a Criminal Indictment. This is done in strict secrecy, and witnesses may be brought into the Grand Jury chambers without being seen by the public. During criminal hearings no one is allowed to enter Grand Jury room except the District Attorney, witnesses, and court reporter (No one may enter the Grand Jury chambers without the Jury’s permission, not even a judge). It is an extremely formal process, operated within a rigid legal framework. During the hearing, the District Attorney must present enough evidence to convince at least 14 of the jurors present that probable cause exists a crime was committed. Again, probable cause is a much lower standard to meet than beyond a reasonable doubt. State law requires that as part of the District Attorney’s presentation, any exculpatory evidence (evidence suggesting the defendant did not commit the crime) must also be presented to the jurors. Interestingly, the defendant is seldom present during these proceedings, but may be given the right to present testimony, if desired. They seldom do.

Outside of the Grand Jury, I have spoken to witnesses who were called to give testimony before other Grand Juries. They tell me it’s quite an overwhelming experience, in a closed room being closely watched by 19 Grand Jurors, with no attorney present (even some District Attorneys have admitted to some nervousness when presenting evidence). Thus the atmosphere in the chamber itself can be quite compelling in eliciting testimony.

After presentation of evidence, if at least 14 Grand Jurors find there is probable cause a crime was committed, a Superior Court judge is summoned into the Grand Jury chambers and a “True Bill” is issued. This will then send a case directly to trial, and a preliminary hearing bypassed. If there is a possibility of flight risk by the defendant, the indictment may be sealed until the defendant is in custody. Ultimate guilt or innocence will be determined at the trial (either by judge or jury) not by the Grand Jury.

Again, speaking in generalities, I found this aspect of Grand Jury service to be the most fascinating (admittedly there were a few times it was a snooze-fest). The inner workings our our legal system were interesting to watch and I learned much about the law. The hearing for a single case can run anywhere from a few hours to a week or more, depending upon complexity and number of defendants. Sadly, I can’t talk about any of it, but I guess I can say I learned most criminals are some of the stupidest people in our society. As in breathtakingly stupid.

To meet the Grand Jury’s public watchdog responsibility, the Jury may study certain government agencies to ensure they are working honestly and adequately. The Grand Jury only has jurisdictional review over local government agencies. State and Federal agencies are outside the jurisdiction of County Grand Juries, so you won’t see a County Grand Jury going after the State DMV, deserved though it might be.

As part of a governmental agency review, Jurors may meet with agency heads and employees, and review written records. Generally most agencies are very cooperative with the Grand Jury, but occasionally subpeoneas must be issued. County Counsel provides the Grand Jury’s legal support in these sort of matters. Upon completion of the agency review process, the Grand Jury usually issues a report containing its findings, although there is no requirement to do so. These reports sometimes end up in the media with a bit of a sensational splash, as there is often little outside indication such a review is in process. Surprise! And the public, especially the more anti-governmental types in general, seem to enjoy criticism of governmental agencies (whether or not such criticism is valid….more on that later).

But here’s a little “secret” the public isn’t quite aware of. These reports really have little in the way of teeth. When a Grand Jury report is issued concerning the activities of a particular government agency, the only obligation of that agency is that they must provide a written response to the Grand Jury report within either 60 or 90 days (the time period depends on the specific type of agency). The response must state whether that agency agrees, partially agrees or disagrees with the report. That’s it. There is no requirement the agency change operations in any way. Usually, when an agency disagrees with a Grand Jury report, it accompanies its disagreement with an array of data and reasoning why it disagrees, but it doesn’t have to.

But practically speaking, Grand Jury reports only serve to provide a spotlight onto governmental operations they find questionable. In some cases they can marshal public opinion to enact change, but the reports themselves will not create change.

There is no required minimum number of reports for the Grand Jury to do over its term, but historically it seems to run between 10 and 20 reports per term. Much is dependent upon the criminal indictment workload, as that tends to take priority. It also depends on how adept and efficient a particular jury is. Agencies reviewed are solely at the Grand Jury’s discretion. However by law the Grand Jury is required to annually inspect the jails, which usually ends up as a report. And in the case of most general elections held in Orange County, the Grand Jury acts as oversight for the public and monitors the election process. This often has ended up as a report.

Selection process for Grand Jurors

The selection process for Orange County Grand Juries usually begins in October when recruitment press releases go out. The sitting Grand Jurors themselves assist in recruitment by speaking before outside groups and even the potential trial jury candidates waiting in the courthouse to serve on juries each day. This latter aspect always struck me as somewhat ironic, trying to convince individuals that mostly didn’t want to be there for even a day to sign up for a full year. Usually applications are due around the first week of January. Typically, anywhere from 200 to 300 applications are received. Here is a link to the recruitment page of the Orange County Grand Jury.

Toward the end of January, a mandatory meeting is held at the Santa Ana courthouse for everyone who submitted an application. At this meeting, run by officers of the court, the remainder of the process is described in detail, expectations spelled out and questions answered. This is the last chance for prospective jurors to pull out before things get interesting. And after hearing what comes next, a few folks always do have second thoughts and withdraw their applications.

The following month, in February, a panel of judges reads though all the applications of those prospective jurors still wishing to romp through the gauntlet. On the basis of what’s written on the applications, the judicial panel trims the number of applications down to about 90. It’s a lot of work, but I expect it’s pretty clear if applicants can’t write or are wingnuts (but not always). An important aspect of this screening (more on this later) is that the panel of judges attempts to select the 90 semifinalists proportionally to the five supervisorial districts in Orange County. That is, 18 applications from each district.

Once the 90 semifinalists are selected by the panel, the Orange County Sheriff’s Department begins a pretty exhaustive background check on each individual. This includes checking with earlier employers, credit and criminal checks, coming by their homes to do interviews, and speaking with neighbors (anal probes are not part of the process, at least at this point in time). In my case, they even asked for a tour of my home. My neighbors were asked questions like, “Do you ever hear shouting or arguing coming from his home?”, or “Does he drive fast down the street?” (the correct answers being “no” and “yes”!). In general I found it a pretty creepy and intrusive experience, but a hoop I was willing to jump through for Grand Jury service. Many people are not, so be aware of this. The background checks usually eat up all of February and some of March.

Upon completion of the background checks, groups of judges begin interviews of the remaining 90 candidates. These interviews usually run from mid-March through mid-April. Candidates are individually called before a panel of at least two judges and asked questions. I suspect the judges are looking for folks who are not obviously insane and won’t do permanent damage to the judicial system. In my case, even though I was very nervous, my interview lasted less than 15 minutes and was mostly small talk. Since I had prepared a pretty good application, I’m guessing the judges merely wanted to see that I wasn’t nuts (Hah, fooled ’em!), and wasn’t assisted by someone else.

Once the interview task is complete, the judges meet and on the basis of the interviews and the Sheriff’s background checks, whittle the application pool down to 30 finalists. Again they strive to do so proportionally to the five supervisorial districts, which means 6 finalists from each district. The finalists are notified, usually by the end of April or early May, and a press release issued containing the names of the 30. Shortly thereafter, all 30 prospective Grand Jurors are fingerprinted and put through a “Live Scan” process where their fingerprints are checked against state/federal criminal databases.

To ensure there’s no judicial favoritism, the final selection contains an element of chance. In mid-May, the 19 Grand Jurors for the upcoming term are selected by pulling names from a drum. Yes, a drum. Like in bingo (Grand Jury bingo?) The names of all 30 finalists are put in a wood drum, cranked around a bit and the first 19 names pulled out become the designated Grand Jurors for the upcoming term. Whether they are the “winners” or “losers” can be debated. The remaining names are then pulled out, and those names become the alternates, in the order they are pulled.

In June, a mandatory four day training and orientation program is conducted for the incoming Grand Jurors by the outgoing Grand Jurors. It was a little disconcerting to see the giddiness and glee in the outgoing Grand Jurors and it starts to sink in to the new bunch just what we’re in for. My take away at the end of my four days was, “Oh crap, what have I got myself in to??”

Lacking any sort of graceful way out, the swearing in occurs the morning of July 1, concurrent with the parole, uh, I mean discharge, of the current panel. So starts an interesting year….

High points of Grand Jury service:

Pay: You actually get paid for this gig. Orange County pays Grand Jurors $50 per day and gas mileage to and from the courthouse. Mileage rates vary but were around 45 cents per mile. Not a huge amount, but it takes the sting out a bit. Beyond the daily pay there are no employment benefits and you’re paid as an independent contractor (that means no income taxes are withheld!).

Parking: Grand Jurors get to park in their own extremely cool assigned parking spaces underneath the courthouse and can directly access the chambers by an internal means. While the parking perk may not seem like a big deal, even long time employees in the courthouse must park several blocks away. Courthouse parking is highly coveted and very secure.

Work hours: The jury panel votes to set their own work schedule. Usually it’s a partial day Monday through Thursday, and a very short day on Fridays. A panel could decide to work a four day week or some other flexible schedule. But to be available for preliminary hearings usually requires some sort of five day a week attendance.

Tours: The first several months of a Grand Jury term is filled with orientation tours. The majority of Jurors usually don’t have government experience and the orientation provides an understanding of how local government is run. Tours include places like the jails, landfills, airport, harbor, water treatment facilities and individual government agencies. In some cases department heads appear before the Grand Jury to present detailed information on the operation of their departments. These are extremely interesting and sometimes entertaining. They are not to be called junkets.

Fascinating cases: Many criminal cases heard by the Grand Jury are fascinating, much better than anything on television. But you can’t tell your neighbors about them!

Inside information: Being on a Grand Jury connects one to all sorts of inside information. You find out what’s really going on in government, not what’s just reported in the press. The difference between what actually occurs and what gets reported by the media has very much enlightened me and changes the way I think about current events. Unfortunately you cannot share this with anyone other than your fellow Grand Jurors, not even your spouse.

Maybe make a difference: Serving on a Grand Jury provides a citizen with a unique chance to really make a difference. Sure, politicians and other elected officials can create change, but it’s hard for the average person to do so. The Grand Jury is a real opportunity for public service.

Not everything is rainbows, puppydogs and ponies. As with many endeavors, there are potential downsides and frustrations to Grand Jury service. Here’s a non-exhaustive list.

Competency issues

Random selection versus qualifications: Remember when I described the Grand Jury selection process and how applicants were selected proportionally to supervisorial districts? This seemingly fair process can have some unpleasant side effects. For cultural and demographic reasons, applications are not submitted equally from all districts. Certain districts only apply in very small numbers. For example, contrast a district in which 70 applications are received versus one in which perhaps only 10 applications come in. The judges strive to have six final names from each district placed in the final bingo drum for Grand Juror drawing. If you had two groups, one of which you weeded 70 applications down to 6 versus a group of 10 application cut down to 6, which group do you suppose would be the more qualified, on average? Yet when each group of 6 gets mixed in the selection drum, the odds of their selection become the same. Thus it’s possible to select Grand Jurors from one district that are far less qualified than jurors from another district who were already excluded in the selection process. So if an applicant lives in the right supervisorial district, they don’t have to be competent to make it onto the Grand Jury, just breathing. To be fair, efforts are made to compensate for this effect by increasing recruitment efforts in the underrepresented districts.

Another concern is the randomness of the selection. If someone holds a responsible position with a large organization, the odds are good that they and their peers got there by doing what they do at least fairly well. There exists a selection process based on at least a certain level of excellence. And they establish working relationships with their peers to aid in completion of tasks. Now contrast that with a room of 19 completely inexperienced strangers, randomly thrown together and tasked to perform sensitive, important tasks. This sort of approach does not appear to promote excellence.

An older demographic perhaps no longer at the top of their game: People applying for Grand Jury service tend to be a much older demographic (and I sadly count myself in with the older farts). It makes sense, as older, retired folks are usually the few who can meet the time demands of the Grand Jury. Unfortunately, as people get older, their physical and mental capacities naturally diminish. This sometimes is politely referred to as “senior moments”. The problem is most people don’t know this is occurring. And in more extreme cases, people can get pretty loony and unreasonable when they get old. It is also a somewhat accurate stereotype that older people are not as proficient in the use of computers or software. Grand Jury service requires this.

Former managers who had “people” to do the work they now have to on a Grand Jury: So, retired people are the predominate demographic of Grand Juries. In many cases they have had long, very successful careers, often moving up to high levels of responsibility in organizations. Thus the latter part of their careers were more focused on “managing people” rather than “doing things”. They had people to “do things” for them. There are no people to do things for the Grand Jurors. They must do their own things. So, paradoxically, a former highly successful former manager could face real challenges when trying to perform the more menial tasks required of Grand Jurors.

Jurors with hidden agendas: Some people have hidden agendas. They mistrust government and are certain waste is rampant and widespread. They view serving on a Grand Jury as their chance to “clean things up”, and by God they’re going to do so! Or perhaps they have a pet peeve over some issue in their home city and want to use the Grand Jury as a vehicle to go after it. Fortunately, the screening process can weed out the more egregious cases. But the smarter ones, the ones that can keep their agenda hidden, can make it through. This could be a serious problem, as jurors are supposed to approach things in an impartial manner. Having an individual juror with a hidden agenda can burden the entire panel as the individual tries to enlist others in the crusade. And given that such an individual already begins on an unreasonable foundation, failure of others to side with him only increases the polarization and anger.

People unfamiliar with local government operation: Having worked in local government for a number of years, I know it can be quite complex at times. There are many subtleties to it. Some is indeed simple, but much is not. It is asking a lot, probably too much, to have “average folks” conduct detailed reviews of complex agencies. Worse than that, jurors may lack even the basic understanding of the functions of local government, such as the role of special districts, for example. It’s a sad fact of life that people unqualified to perform certain tasks usually don’t realize they are unqualified (See the Dunning-Kruger effect).

Interpersonal dynamics: You will be spending the next year working in a single room with 18 new friends in a work space 36″ away from a neighbor on each side. If this sounds good to you, and you like dealing with egos, petty feuds, cliques and hurt feelings, then the Grand Jury is for you! You know, just like high school, only with old farts.

Crazy Grand Juries

A crazy Grand Jury is an only partially facetious term I coined to describe a Grand Jury that is out of control or acting in an unprofessional manner. One wouldn’t think that something like that could occur, but it can, and more often than you might think. There is almost no judicial oversight of a Grand Jury panel, as it’s an independent body. That means jurors have to figure out everything on their own, and sometimes they don’t get it right.

In some cases you can have a panel with a few folks with hidden agendas or some other flavor of wing-nuttery. If these individuals have strong personalities they can often sway the more sane jurors into going along with them, if only to keep the peace.

Part of the problem is there’s no penalty if a Grand Jury does a poor job. There’s no supervisor checking their work for quality. And even if things go far south, there’s only a very slim chance of judicial intervention. If you did lousy on a real job, you would be fired. Not so on a Grand Jury. You go home at the end of your term with a nifty certificate, no matter what sort of job you did. There’s a hidden irony that some Grand Jurors become the stereotypical “government employees” they rail against at other times, incompetent and unfireable.

I was told a story by a friend whose agency was the subject of a Grand Jury report a number of years ago. Prior to report publication by the Grand Jury, an agency which is the subject of the draft report is given an opportunity to comment on it. In my friend’s case, it was pointed out to the Grand Jury that the rather negative report contained a number of foundational, factual errors that completely changed the outcome. It was flat-out incorrect. Even after being given the correct information, that Grand Jury let their incorrect report be published, without the new information. That is unprofessional, that is wrong, and I call that a crazy Grand Jury.

How to spot one:

Since Grand Juries are cloaked in secrecy, it’s sometimes difficult to tell if they’re crazy. Perhaps the best way is to look carefully at the reports a Grand Jury issues, and compare them against the required responses issued by the agency which is the subject of the report. If the agency agrees or partially disagrees with the findings, then it’s probably a good report. And even if an agency disagrees and harrumphs over the findings, it’s probably no big deal and could be an excellent report. But, if an agency strongly disagrees, says the Grand Jury is completely wrong and here’s precisely why, and that they’re clueless, ugly and their mothers dress them funny…..well, maybe there’s a problem. What you want an example? OK, but remember, it’s merely my opinion and you asked.

Take the report issued by the 2009/10 OC Grand Jury on the Orange County Great Park, titled, “Financing the Great Park: Now You See It Now You Don’t“. Contrast it with the City of Irvine’s response. Now I need to say upfront I’m not a fan of the Great Park. Not at all. I think its management has been crappy and there are significant problems with it. However based upon my experience in local government, the financing methodology targeted by the report is in fact an ingenious way to move funds around to permit their freest use. It was friggin’ clever! The Grand Jury report is obviously clueless about this. And the City of Irvine’s response clearly demonstrates that report lacked a fundamental understanding of the issue. Hmmmm….That’s starting to sound a bit crazy.

What other clues might there be that a Grand Jury is skipping down Crazy Street? How about when their behavior results in the enactment of a new state law to outlaw such behavior? Oooh, that would be a good one. But that never would happen, would it?

Ahem….Consider California Assembly Bill AB1133. It was introduced by Assemblyman Jim Silva of Orange County (uh oh!) on February 18, 2010, and became law on August 5, 2011. Through its legislative course it was always approved unanimously. What? Something both Republicans and Democrats can agree on? It’s probably best to just quote the actual law, as it’s short and sweet:

SECTION 1. Section 916.2 is added to the Penal Code, to read:

916.2. (a) Notwithstanding any other provision of law, a grand juror who is a current employee of, or a former or retired employee last employed within the prior three years by, an agency within the investigative jurisdiction of the civil grand jury shall inform the foreperson and court of that fact and shall recuse himself or herself from participating in any grand jury civil investigation of that agency, including any discussion or vote concerning a civil investigation of that agency.

Huh? Why is there a law needed to require a Grand Juror to recuse himself from investigating an agency he might have been formerly employed with? Oh…..This is why:

What’s fascinating (and disheartening) about these two examples from the same Grand Jury panel is the press accepted their reports issued as gospel and never explored the possibility they could be tainted by ignorance or conflict of interest. Indeed, to this day the reports get mentioned in the press when criticisms of these two projects are raised. For reasons unknown to me, the press seldom questions the competencies of Grand Juries. But they should. The mechanisms to insure Grand Jury competence are very weak. And Grand Juries, when crazy, can cause real damage.

Would I do it again?

In a word….No. But not because it wasn’t worth it, as it was. I’m very glad I did it. It was one of the most interesting things I’ve ever done, and most of it I enjoyed immensely. The problem is our panel was generally so outstanding it ruined me. There were some exceptionally talented and dedicated people involved (of course talent and dedication are Gaussianly distributed). In my opinion, we were one of the finest Grand Juries in a decade. This was due in no small part to our foreman who spent many a sleepless night worrying over how to herd a room of cats. Were I to apply for another term, the odds would be high I’d end up on a panel less competent than mine, or worse yet, a crazy Grand Jury. I just can’t take the chance.

Would I recommend it to others?

Yes, with a qualification. If someone knows truly what they are getting into, as has been outlined above, then go for it. A wise move might be to avoid any responsible position within the Grand Jury until you get an overall feel for the panel (Advice given to me before I joined by a very wise person). That way if the fruitcake percentage is too high, you can just pull back a bit and let the panel do its wild and crazy thing. If you’re a committee chair or officer (or care about doing good work) it’s much harder to overlook stupidity and nonsense.

Review of the Sheriff’s Aviation Support Unit: Which examined the operation of the Sheriff’s Aviation Unit, a helicopter unit based at John Wayne Airport, which provides law enforcement and search and rescue services to the County (and strangely got absolutely zero press notice).